30 Years Later, Man’s Conviction for Vicious Rape Fully Vacated
By Nikki Suzani
BROOKLYN — After spending 30 years in prison, Brian Davidson was finally released as a result of the work of the Brooklyn DA’s new Conviction Review Unit (CRU)—his conviction was fully vacated.
In 1987, Davidson was convicted of one count of Rape in the First Degree, two counts of Sodomy in the First Degree, one count of Robbery in the Second Degree, and two counts of Coercion in the First Degree.
The case involved two co-victims who, after closing up their shop, were robbed—one was repeatedly raped by different perpetrators during the robbery, had a gun held to her head, had a cloth over her face, and ultimately passed out due to trauma. The perpetrators also attempted to coerce her co-victim into participating in the rape, and hurt him when he refused.
Of the nine categories the CRU uses to vacate convictions, six applied to Davidson’s case: Eyewitness Mis-identification, Police Conduct, Prosecutor Conduct, Defense Conduct, New Interview Evidence, and 
New Expert Evidence.
The case against Davidson had been predicated on the rape victim identifying him in a lineup. However, during the course of the rape her perpetrators had worn masks, she had a cloth over her face, and had even passed out. In her statement to the police, she had mentioned that she used voices to identify the perpetrators—but had somehow visually identified Davidson in the lineup.
Further, an expert witness testified that during periods of stress and trauma, such as the one that the victim had to endure, it is difficult to encode memories.
Looking through the inconsistencies of the victim’s accounts—she presented at least 10 somewhat differing accounts over the course of the investigation about the number of perpetrators, guns present, descriptions, acts, and more—the expert thought this difficulty would apply to Davidson’s case.
The victim had also claimed that as time went on, her memory became more clear, so while she had not initially identified Davidson she was later able to do so; however the expert pointed out that this is not a correct representation of memory, as the most accurate identifications would be the closest to the time of the rape. Given that the victim was asked to identify Davidson three months after the rape, the expert testified that identification would have a high likelihood of being inaccurate.
The victim in the case had also mentioned that there were four perpetrators, when the co-victim had said there were three. One of the perpetrators she described as having “Jheri curls,” the hairstyle of her co-victim, but that was not one that any of the four alleged perpetrators had.
The expert testified that this mistake could have been due to the idea of “unconscious transference,” transposing the memory of the co-victim as a fourth perpetrator.
The CRU also found that the detective on the case had intentionally skewed the victim toward believing Davidson was her rapist in three major ways. First, he had shown the victim a photo array two days before the lineup that had Davidson in it—she had not identified him in the initial photo array and only did later in the lineup, when the image of him from the photo array may have skewed her memory.
Second, the detective told the victim before the lineup the name of the defendant and that he believed Davidson to be the assailant, skewing the victim’s perception and ensuring that her identification did not come from her independent memory.
Finally, after identifying Davidson in the lineup, the detective guided the victim in a way such that she saw Davidson in cuffs, reinforcing her belief that he was one of her assailants.
It is important to note that there was inconsistency throughout her identification as well: not only did she originally fail to recognize him in the photo array, but her co-victim did not recognize him at all and even said that he believed there to be three, not four perpetrators.
Law enforcement at the time did not acknowledge this and refused to test obtained semen for blood type, didn’t test the rape kit for DNA, and didn’t analyze the palm print found at the scene—steps the CRU found necessary given the inconsistencies. This was clear police misconduct and failure to investigate, according to the CRU.
The CRU found that, due to prosecutor conduct, the decision of the appellate court at the time, and defense conduct, Davidson had ultimately been denied his right to a fair trial.
The prosecutorial conduct was particularly egregious. During the case, the prosecutor said that the “witness had never seen Davidson before in her life [when picking him out of the lineup],” but she had seen him in a photo array days earlier. The prosecutor also claimed in closing that the co-victim had also identified four perpetrators, although the co-victim had continued to claim there were only three.
The prosecutor also had the detective testify that the victim had identified Davidson in a lineup, violating People v. Trowbridge, 305 N.Y. 471 (1953), precedent in New York law established to stop hearsay testimony.
The CRU also noted that the defense had failed to adequately defend Davidson by failing to argue that the victim could’ve recognized Davidson from the previous photo array, failing to point out inconsistencies between Davidson and her description of the fourth perpetrator (including the “Jheri curls”), failing to reopen the motion to suppress after learning about the detective’s prejudicial comments to the victim, and telling the jury in summation that he was “not going to remember everything that was said” and proceeding to misstate key facts.
The defense counsel also failed to object to false statements in the prosecutor summation that the co-victim had testified to the presence of four perpetrators, that the victim was 100 percent certain of her identification of Davidson, and the assertion without basis that Davidson did not resemble his photo in the photo array.
The defense did, however, file a motion to suppress the lineup identification, given that the victim had previously seen Davidson in the photo array—this went to the Appellate Court which denied the motion by concluding that the photo array with Davidson was “not a ground for concluding that the procedure was so conducive to the possibility of irreparable misidentification as to require suppression” and that the detective’s claims were “not fatal to the propriety of the procedure.”
In the report, CRU stated that they believe this is at odds with how memory works, believing that the Appellate Court also contributed in denying Davidson a fair trial by failing to rectify his wrongful conviction on appeal.
In terms of new interviews and testimony, the CRU spoke to both Davidson and two of the co-defendants. They found credibility in the fact that Davidson had remained calm and repeatedly maintained his innocence, even during parole board hearings where admitting his guilt could have led to an earlier release.
Further, a co-defendant, who had no reason to exculpate Davidson had the co-defendant’s trial had never proceeded due to the victim’s trauma, expressed guilt from the crime and expressly stated that Davidson had not been part of the rape. Another co-defendant also supplemented this claim, expressing the same remorse but stating that Davidson was not involved.
This testimony was particularly powerful to the CRU, as they had not told this co-defendant whose conviction they were investigating. Although the last co-defendant was unavailable, the CRU took solace in the fact that in a 1995 parole hearing this co-defendant had admitted to guilt in the crime and spoken about the other two co-defendants, but never once mentioned Davidson.
Thus, due to issues along the investigation and conviction process on almost all levels, the CRU chose to vacate Davidson’s conviction and mandate his release from prison.
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